ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003153

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00004303-001	09/05/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00004303-002	09/05/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00004303-003	09/05/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00004303-004	09/05/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00004303-005	09/05/2016

Date of Adjudication Hearing: 28/07/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

On the 27^th.Sept. 2016 , the respondent advised that as far as he was concerned the total amount owing to the claimant is €4124.92 and submitted that any monies owing would be paid .He stated that he could not give a time frame for payment .

The claimant responded on the 7^th.Oct.2016 taking issue with the respondent’s time frame and submitted that an indefinite time frame was unacceptable to her.

Complainant’s Submission and Presentation:

I worked for my Employer from April 2011 up to 27th May 2015. My employment was terminated by my Employer in May 2015, he stopped paying wages and granting holiday entitlements, and the business closed down leaving me with no work. I was not given a certificate of redundancy by my Employer (RP50). I phoned my Employer and requested Redundancy in September/October, 2015 and the other outstanding entitlements of wages and pay etc, but none were issued to me to date. My employer did not provide an RP50 or any statement of being unable to pay redundancy e.g. a statement of affairs to the Department of Social Protection. I have written to my Employer by letter dated 20th April, 2016 to both the work address and my Employer's home address enclosing an RP77 but no reply was provided to either of my letters. (copy of letter and RP77 attached)

I was underpaid for many weeks in my final 3 months or so of employment, my Employer would not give me the proper full week's wages and kept promising that it would be paid the following week, but this did not happen so I was constantly left short and thus outstanding wages due to me. I worked 24 hours per week, and on occasion I had to work a full 40 hour week when my Employer went on his own holidays. I did not receive any wages for the extra hours worked. I am claiming €1,464.92 in wages due and €560 for 8 days in hand outstanding to me. I also did not receive statutory annual leave entitlement - I was not facilitated to take my annual leave within the leave year on many occasions as there was nobody provided to cover for me by the Employer for my absence, thus it was very difficult to get to take annual leave, despite my requests to take annual leave. My statutory annual leave accumulated and was never granted before my employment ceased on 27th May 2015- again my Employer kept promising that he would sort out the matter and facilitate the granting of due annual leave entitlements to me, but failed to do so. The annual leave entitlement based on 24hours per week was set at 12 days per annum. I am claiming 30 days annual leave outstanding at date of termination of my employment. (I contacted my Employer by phone in September/October 2015 and requested that he pay all outstanding entitlements to me, he indicated that he was waiting to sell the factory and would pay me thereafter, but no payment has been forthcoming to date of this claim.) My position was made redundant, my employment was terminated, no certainty given that wages would be available for the hours worked - I was not given proper statutory notice of the the ending of my employment, which is two weeks entitlement having between 2-5 years service.

I did not receive statutory annual leave entitlement - I was not facilitated to take my annual leave within the leave year on many occasions as there was nobody provided to cover for me by the Employer for my absence, thus it was very difficult to get to take annual leave, despite my requests to take annual leave. My statutory annual leave accumulated and was never granted before my employment ceased on 27th May 2015- again my Employer kept promising that he would sort out the matter and facilitate the granting of due annual leave entitlements to me, but failed to do so. The annual leave entitlement based on 24hours per week was set at 12 days per annum. I am due 30 days annual leave outstanding to me at date my employment was terminated = €2,100.

I was never given a written statement of Terms and Conditions of Employment since I commenced employment in April 2011. I am claiming my rights for breach of employer's duty under the Terms of Employment Information Act 1994

My position was made redundant, my employment was terminated, no certainty given that wages would be available for the hours worked was ongoing up to the date of termination- I was not given proper statutory notice of the the ending of my employment, which is two weeks entitlement having between 2-5 years service.

The claimant was employed as Office Administrator with the respondent from the 4^th.April 2011 until the 27^th.May 2015 when she submitted her employer terminated her employment and left her with no work. She was employed 3 days per week and earned €210 per week.In the months prior to the termination of her employment she asserted that her pay was sporadic, she was unable to avail of paid annual leave and submitted the respondent told her that the business was closing.She stated this was obvious because for the last number of pay periods she was not paid.She submitted that at this point in time , she was paying a carer to mind her mother in law and given the imminent closure of the Company and the non payment of wages she was forced to leave her employment .

Respondent’s Submission and Presentation:

The respondent asserted that the claimant was not entitled to redundancy as she voluntarily terminated her own employment.He contended that she left before the business closed on the 19^th.June 2015 which was some 3 months after the claimant had left.He insisted the business was not closing down when the claimant left.He asserted that he had never told the claimant that the business was closing and she was not replaced when she left.He acknowledged the claimant had not been furnished with written terms and conditions of employment and that she was owed outstanding wages and holidays.He disputed the amount of holidays owing and said he would have to await calculations from his accountant.He stated that he had agreed to the claimant carrying forward leave but argued that she had availed of 2 weeks holidays every August and 2 days holidays at Christmas.He stated that as soon as he sold the building he would pay the claimant the amounts outstanding as determined by his accountant.

As previously referred to in his later submission , he conceded that the claimant was owed €4124.93 in total based on calculations received from his accountant.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Terms of Employment (Information)Act 1994 CA-00004303-004

The claimant’s complaint was received on the 9^th.May 2016 – her employment was terminated on the 27^th.May 2015.The claimant submitted that there was reasonable cause for the delay in making the complaint as she wrongly believed the consistent reassurances from the respondent that he would pay alloutstanding monies to her.She had hoped to resolve the matter without having to involve third parties.

In the circumstances , I am satisfied that there was reasonable cause for the delay in making the complaint and accordingly I have concluded that I have jurisdiction on the matter.It was not disputed that the claimant was not furnished with written terms and conditions of employment and consequently I uphold the complaint.

I require the respondent to pay the claimant €800 compensation within 4 weeks of the date of this decision.

Redundancy Payments Act 1967 CA-00004303-001

The claimant’s complaint was received on the 9^th.May 2016 – she contended that she was made redundant on the 27^th.May 2015.The fact of redundancy was disputed. However, the claimant did accept that the respondent advised her within 3 weeks of the termination of her employment that he would not be paying her redundancy as it was his position that she had left the employment and was not replaced.While the claimant argued reasonable cause on the basis of the reassurances given by the respondent to pay outstanding monies , it was not disputed by the claimant that the respondent made it clear from the outset that he would not be paying redundancy.In light of this circumstances , I find that the claimant was unable to demonstrate reasonable cause for the delay in making this element of the complaint and consequently the complaint is out of time.

Minimum Notice & Terms of Employment Act 1973 CA-00004303-005

In the circumstances , I am satisfied that there was reasonable cause for the delay in making the complaint and accordingly I have concluded that I have jurisdiction on the matter.

On the basis of the evidence presented at the hearing , I ma satisfied that the claimant terminated her own employment and consequently I do not uphold the complaint.

Payment of Wages Act 1991 CA-00004303-002

The claimant’s complaint was received on the 9^th.May 2016 – her employment was terminated on the 27^th.May 2015.The claimant submitted that there was reasonable cause for the delay in making the complaint as she wrongly believed the consistent reassurances from the respondent that he would pay all outstanding monies to her.She had hoped to resolve the matter without having to involve third parties.

In the circumstances, I am satisfied that there was reasonable cause for the delay in making the complaint and accordingly I have concluded that I have jurisdiction on the matter.

On the basis of the evidence presented at the hearing and the admission by the respondent with respect to outstanding wages due I am upholding the complaint and require the respondent to pay the claimant €2024.92 within 4 weeks of the date of this decision.

Organisation of Working Time Act 1997 CA-00004303-003

The claimant’s complaint was received on the 9^th.May 2016 – her employment was terminated on the 27^th.May 2015.The claimant submitted that there was reasonable cause for the delay in making the complaint as she wrongly believed the consistent reassurances from the respondent that he would pay alloutstanding monies to her. She had hoped to resolve the matter without having to involve third parties.

In the circumstances , I am satisfied that there was reasonable cause for the delay in making the complaint and accordingly I have concluded that I have jurisdiction on the matter.

The claimant submitted that on cessation of employment she was entitled to 30 days of outstanding annual leave .On the basis of the evidence presented and given the provisions of Section 23 of the Act , I am upholding the complaint but I am required to limit the award to a maximum of 24 days.I require the respondent to pay the claimant €1,680 for outstanding leave on cessation , within 4 weeks of the date of this decision.I further require the respondent to pay the claimant €750 compensation for this breach of the Act.

Dated: 20^th December 2016